People v. Nielsen

Filed 3/30/26 (see dissenting opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A170363

v.

MARK NIELSEN, (Mendocino County

Super. Ct. Nos. 24CR03321,

Defendant and Appellant.

23CR02514, 23CR02511,

23CR01950)

Defendant agreed to a negotiated disposition of several cases, and the

trial court sentenced him to the upper term in the principal case. Defendant

appeals, arguing the trial court did not understand that it had to apply the

low term presumption in Penal Code 1 section 1170, subdivision (b)(6) (section

1170(b)(6)) when sentencing him. Defendant also contends that the trial

court failed to correctly determine and state his custody credits in one case.

We affirm the judgment.

BACKGROUND

In March 2022, in case No. 23CR02511, defendant suffered convictions

for evading an officer with willful or wanton disregard (Veh. Code, § 2800.2,

subd. (a)) and driving or taking a vehicle without the owner’s consent

1 All further statutory references are to the Penal Code unless

otherwise indicated.

1

(Veh. Code, § 10851, subd. (e)). He was sent to prison and was released on

Post Release Community Supervision (PRCS) in May 2023.

In September 2023, in case No. 23CR01950, defendant pleaded no

contest to a misdemeanor violation of willfully inflicting corporal injury

resulting in a traumatic condition upon his spouse (§ 273.5, subd. (a)). The

court placed him on formal probation for three years.

In October 2023, in case No. 23CR02514, defendant was charged by

information with unauthorized taking or driving a vehicle with qualifying

priors (Veh. Code, §§ 10851, subd. (a), 666.5, subd. (a) (count 1));

misdemeanor unlawfully operating a vehicle without an interlock device

while his driving privileges were restricted (Veh. Code, § 23247, subd. (e)

(count 2)); and misdemeanor driving when his license was suspended or

revoked for a driving-under-the-influence offense (Veh. Code, § 14601.2,

subd. (a) (count 3)). The People alleged that defendant suffered two prior

convictions pursuant to Vehicle Code section 14601.2, subdivision (d)(2), and

further alleged several circumstances in aggravation under California Rules

of Court, rule 4.421.

In January 2024, in case No. 24CR03321, defendant was charged by

information with transport or sale of methamphetamine (Health & Saf. Code,

§ 11379, subd. (a) (count 1)). The People alleged an out-on-bail enhancement

(§ 12022.1) and numerous circumstances in aggravation under California

Rules of Court, rule 4.421.

Also in January 2024, defendant was charged by a third amended

second petition for revocation of PRCS in case No. 23CR02511 with several

violations of law and failures to report to probation, committed on various

occasions. And in case No. 23CR01950, the People filed a third amended

2

petition similarly alleging a probation violation based on several violations of

law and failures to report to probation, committed on various occasions.

In case No. 23CR02514 and pursuant to a global disposition, defendant

pleaded no contest to count one (Veh. Code, § 10851, subd. (a)), and he

admitted the section 666.5 priors and four circumstances in aggravation

under California Rules of Court, rule 4.421(b)(2)–(5). In case No. 24CR03321,

pursuant to the global disposition, defendant pleaded no contest to added

count two for possession for sale of methamphetamine (Health & Saf. Code,

§ 11378).

In case No. 23CR02511, the court found a PRCS violation based on the

pleas in case Nos. 23CR02514 and 24CR03321, and the court likewise found a

violation of probation in case No. 23CR01950. 2

Before sentencing, defendant submitted a report from a substance

abuse specialist, several letters, and certificates from courses that he had

completed. The substance abuse specialist’s report detailed defendant’s

history of substance abuse and trauma. The report conveyed, “[Defendant]

states that he was a victim of physical, emotional, mental abuse, and severe

neglect as a child. [Defendant] reports that he has never received counseling

and believes his using is directly related to his childhood trauma.” Defendant

disclosed that his “rite of passage” was using and dealing drugs because his

father and uncles “were heavy users and drug dealers.” (Ibid.)

Defendant’s stepsister wrote a letter describing defendant’s childhood.

She met defendant when he was five and his two brothers were teenagers.

She explained that defendant’s father was an addict and he gave “the teenage

2 A fifth case in which defendant was alleged to have violated a court

order to prevent domestic violence (§ 273.6) was dismissed as a part of the

global disposition.

3

boys,” including defendant’s older brother, drugs when they were young to go

and rob homes and bring the stolen items back to him. Defendant’s father

paid the kids in drugs or money. Defendant’s oldest brother, who was

verbally abusive, raised defendant, and defendant’s mother was an alcoholic

who worked long hours. In her letter, defendant’s stepsister asked that the

court give defendant a chance to get the help and treatment he deserved, and

she stated, “[Defendant’s] child[hood] trauma has led him to live the only way

he knows how!”

In the presentence report for principal case No. 23CR02514, probation

marked five factors in aggravation (Cal. Rules of Court, rule 4.421(b)(1)–(5))

and one factor in mitigation. As the mitigating factor, probation stated

defendant “suffers from poly-substance addiction (mainly

methamphetamine), which could have contributed to the instant offense.”

The probation officer listed defendant’s history of drug use, his father’s abuse,

defendant’s 29 prior criminal convictions, and his state prison sentence for

two felony convictions two years prior. Probation believed that there were no

factors overcoming defendant’s presumptive ineligibility for probation and

that a split sentence with mandatory supervision was not appropriate given

defendant’s poor prior performance on probation and PRCS. Probation

recommended that the court sentence defendant to the upper term of four

years in prison in case No. 23CR02514.

At the sentencing hearing in February 2024, defense counsel requested

that the court commit defendant to a residential substance abuse treatment

program. Defendant also read a letter to the court in which he requested a

chance for drug treatment and stated that his “drug use [was] the reason for

[his] criminal history in full.”

4

The prosecutor argued for the upper term sentence. The prosecutor

noted that defendant had admitted several circumstances in aggravation and

had a lengthy criminal history. He observed that the probation report only

mentioned one circumstance in mitigation and “the aggravating

circumstances outweigh that both in numbers as well as significance.”

Additionally, the prosecutor argued that the court should not impose a split

sentence with mandatory supervision (§ 1170, subd. (h)(5)) because of

defendant’s criminal history and numerous PRCS and probation violations.

The court announced that it had reviewed the probation report and

defendant’s submissions. Addressing defendant, the court acknowledged the

“drug addiction cycle,” and continued, “I understand your history. I

understand you have had a pretty traumatic childhood based on the letters I

have reviewed.” The court said that when defendant was released on bail in

case No. 23CR02514, it had hoped he would show behaviors consistent with

trying to get his life on track, but he instead committed another crime. The

court found that defendant’s criminal history with six prior felonies was “very

lengthy” and did “not appear to have any break, really, in criminality from

the time [defendant was] a juvenile until [that day].” Given defendant’s

numerous prior felonies and his history of “nothing but failure to report,

failure to follow through and getting sent to local prison commitments,” the

court stated that it would not grant probation, it denied mandatory

supervision, and it sentenced defendant to the upper term of four years in

Mendocino county jail (local prison) in the principal case No. 23CR02514.

In case no. 24CR03321, the court denied a split sentence with

mandatory supervision and imposed a two-year middle term jail sentence

concurrent to the principal term.

5

In case no. 23CR02511, the court terminated defendant’s PRCS as

unsuccessful and imposed a 180-day sentence in Mendocino county jail with

credit for 59 days, concurrent to any other sentence. The court also

terminated defendant’s probation in case no. 23CR01950 as unsuccessful and

ordered him to serve 60 days in Mendocino county jail with 30 days of credit,

concurrent to any other sentence.

Defendant timely appealed the court’s sentencing order.

DISCUSSION

I. Section 1170(b)(6)

Defendant argues that remand is required because it is at best

ambiguous whether the court understood section 1170(b)(6)’s statutory

obligation to consider the presumptive lower term where defendant’s

childhood trauma contributed to the offense. The People disagree, arguing

that nothing in the record affirmatively shows the court misunderstood its

sentencing discretion. The parties also debate whether the record contains

an initial showing that defendant’s childhood trauma was a contributing

factor to the principal offense. (People v. Fredrickson (2023) 90 Cal.App.5th

984, 992 (Fredrickson) [some initial showing must be made to section

1170(b)(6) presumption].) We conclude that defendant made a sufficient

initial showing to trigger section’s 1170(b)(6) presumption, but the record

does not raise serious doubts or show that the court was unaware of, or failed

to apply, section 1170(b)(6). (People v. Caparrotta (2024) 103 Cal.App.5th

874, 905 (Caparrotta).) 3

3 Given our conclusion, we do not address defendant’s additional claims

that his sentencing challenge is not subject to forfeiture or that his trial

counsel rendered ineffective assistance by not objecting to the court’s alleged

failure to apply the low term presumption under section 1170(b)(6).

6

We review a court’s sentencing choices for abuse of discretion. (See

Fredrickson, supra, 90 Cal.App.5th at p. 988.) A defendant is entitled to a

sentencing decision made in the exercise of informed discretion, and a court

that is unaware of the scope of its discretion cannot exercise informed

discretion. (People v. Salazar (2023) 15 Cal.5th 416, 424.) We presume the

court knows and applies the applicable law, absent evidence to the contrary.

(People v. Ramirez (2021) 10 Cal.5th 983, 1042; see also People v. Ochoa

(2020) 53 Cal.App.5th 841, 852 [appellate court assumes trial court

understood and properly exercised its sentencing discretion, and error will

not be presumed from a silent record]; Cal. Rules of Court, rule 4.409

[“[U]nless the record affirmatively reflects otherwise,” appellate court

presumes sentencing court considered all relevant factors in California Rules

of Court].) The burden is on the party attacking the sentence to show the

court misunderstood its sentencing authority. (Fredrickson, supra,

90 Cal.App.5th at p. 988.)

Effective January 1, 2022, section 1170(b)(1) makes the middle term

the presumptive sentence for a determinate term of imprisonment. (People v.

Flores (2022) 73 Cal.App.5th 1032, 1038.) Section 1170(b)(2) authorizes an

upper term sentence “only when there are circumstances in aggravation of

the crime that justify the imposition of a term of imprisonment exceeding the

middle term and the facts underlying those circumstances have been

stipulated to by the defendant or have been found true beyond a reasonable

doubt at trial by the jury or by the judge in a court trial.” And section

1170(b)(6) provides that, notwithstanding section 1170(b)(1), “unless the

court finds that the aggravating circumstances outweigh the mitigating

circumstances [so] that imposition of the lower term would be contrary to the

interests of justice, the court shall order imposition of the lower term if any of

7

the following was a contributing factor in the commission of the offense: [¶]

(A) The person has experienced psychological, physical, or childhood trauma,

including, but not limited to, abuse, neglect, exploitation, or sexual violence.”

As applicable here, to trigger section 1170(b)(6)’s presumption,

defendant must point to some initial showing in the record that his childhood

trauma was a “ ‘contributing factor’ ” in the commission of the offense.

(Fredrickson, supra, 90 Cal.App.5th at p. 991.) Fredrickson suggested a

sufficient initial showing is made when the “record and/or arguments are

sufficient to put a trial court on notice,” or where the record contains a “clear

indication” that a defendant’s childhood trauma may have been a

contributing factor in his or her commission of the underlying offense. (Id. at

p. 994.)

The requisite initial showing was made here. The presentence report

did not check the box under mitigating circumstances to indicate that “[t]he

defendant experienced . . . childhood trauma . . . and it was a factor in the

commission of the crime.” However, defendant’s sentencing submissions

showed that he suffered abuse and trauma in childhood, including because

his father and uncles “were heavy users and drug dealers” and using and

dealing of drugs was a “rite of passage.” Defendant stated that “his [drug

use] is directly related to his childhood trauma,” his “drug use [was] the

reason for [his] criminal history in full,” and probation acknowledged that

defendant’s drug addiction could have contributed to the crime. Defendant’s

stepsister submitted details about his traumatic childhood, including that

defendant’s father gave the “teenage boys” drugs to rob homes and bring

stolen items back to him. She wrote, “Please let my brother get the help he

deserves as his child[hood] trauma has led him to live the only way he knows

how!” The record thus contains a sufficient initial showing to establish that

8

defendant’s childhood trauma contributed to his drug addiction and to his

convictions in this case.

We nonetheless reject defendant’s claim that remand is required

because it “is ambiguous, at best” whether the court was aware of its

statutory obligations under section 1170(b)(6). Defendant relies on

authorities addressing different sentencing laws that conclude remand is

appropriate where the record affirmatively, but perhaps not conclusively,

suggests the trial court misunderstood the scope of its sentencing discretion—

i.e., where the record is ambiguous and raises “serious doubts” about the

court’s understanding of its sentencing discretion. (People v. Ochoa, supra,

53 Cal.App.5th at pp. 852–854 [statutory obligation to consider “youth-

related mitigating factors” in sentencing minor defendant who committed

first degree murder]; People v. Panozo (2021) 59 Cal.App.5th 825, 839

(Panozo) [statutory obligation to consider defendant’s service-related

posttraumatic stress disorder as mitigating factor for probation and

sentencing].) For the reasons set forth below, the record here fails to raise

“serious doubts” (People v. Ochoa, at p. 854) about the court’s understanding

of its sentencing discretion.

First, although the court did not make an express finding that

childhood trauma was a factor in the commission of the principal offense at

the sentencing hearing, the record strongly supports an inference that the

court considered it as a mitigating factor. It is true that defense counsel did

not specifically mention section 1170(b)(6), and that probation stated

defendant’s drug addiction could have contributed to the offense but did not

check the box listing childhood trauma as a mitigating factor. However,

defendant’s sentencing submissions clearly conveyed that his childhood

trauma led to his drug addiction and crimes. And indeed, defendant concedes

9

that probation’s opinion that defendant’s “poly-substance addiction could

have contributed to the offense[s] . . . is tantamount to an express finding

that [defendant’s] childhood trauma played a role in his offense.” The trial

court stated that it understood “the drug addiction cycle,” defendant’s history,

and that he had a traumatic childhood based on the letters submitted. It also

stated, “I read the letters, I understand and listen to the arguments and your

letter, I am empathetic to your situation,” and the court’s sentencing minute

order provides: “Factors in mitigation vs. aggravation stated.” On this

record, defendant appropriately concedes that the court understood his

childhood trauma was a mitigating factor. 4

Next, defendant claims that it is ambiguous whether the court

understood that section 1170(b)(6) made the low term presumptive because

the court expressly mentioned his childhood trauma but did not cite section

1170(b)(6) or make express findings thereunder. We disagree. After

discussing defendant’s drug addiction and childhood trauma, the court

detailed defendant’s extensive criminal history, which had no “break, really,

in criminality from the time [defendant was] a juvenile until today.” Nothing

in the court’s acknowledgement of defendant’s childhood trauma suggests

that it misunderstood its obligation to apply section 1170(b)(6), particularly

when this acknowledgement was followed by a recitation of factors such as

defendant’s commission of yet another offense (case No. 24CR03321),

defendant’s “very lengthy[,]” uninterrupted criminal history, and his history

4 After the enactment of the 2022 amendments to section 1170(b), the

following is a mitigating factor under the California Rules of Court: “The

defendant experienced psychological, physical, or childhood trauma,

including, but not limited to, abuse, neglect, exploitation, or sexual violence

and it was a factor in the commission of the crime[.]” (Cal. Rules of Court,

rule 4.423(b)(3).)

10

consisting of “nothing but failure to report, failure to follow through,” and

custodial sentences. 5 (See Caparrotta, supra, 103 Cal.App.5th at p. 905.)

Instead, the record supports the inference that the court considered

defendant’s childhood trauma as a mitigating factor and weighed it against

aggravating factors in the balancing that section 1170(b)(6) requires. In

these circumstances, defendant has not pointed to anything that raises

“serious doubts” or affirmatively indicates that the court misunderstood its

sentencing discretion. (People v. Ochoa, supra, 53 Cal.App.5th at p. 854.)

Furthermore, defendant’s sentencing took place more than two years

after section 1170(b)(6) and the amended requirements for imposing an upper

term sentence under section 1170(b)(2) became effective as part of the same

statute. (See Stats. 2021, chs. 695, § 5, 731, § 1.3.) The trial court here

undisputedly followed section 1170(b)(2) by accepting defendant’s admissions

to the aggravating factors that the People had alleged against him during the

plea hearing and subsequently considering those factors to impose the upper

term. The 2022 amendments to section 1170(b) constituted significant

changes to determinate sentencing procedures (People v. Falcon (2023)

92 Cal.App.5th 911, 918, 925 [2022 amendments “significantly altered”

section 1170(b) and the Determinate Sentencing Law], disapproved on other

grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769); the fact that

the court followed the amendments to section 1170(b)(2) suggests that it

understood the law and did not overlook section 1170(b)(6), a provision that

plainly appears within amended section 1170(b). Defendant has not

persuaded us that the court understood its obligations under

5 The dissent views the court’s statements as providing only reasons for

rejecting probation, but we do not think this is a fair reading of the record.

The court’s minute order indicates “[f]actors in mitigation vs. aggravation

stated,”

11

subdivision (b)(2), but inexplicably declined to read further down the page (or

screen) to take in (b)(6).

Although not factually on all fours, we find Caparrotta, supra,

103 Cal.App.5th 874, a case relied on by defendant, to be analogous.

Caparrotta expressly argued section 1170(b)(6)’s presumption applied

because of his childhood abuse in his sentencing memorandum, and the trial

court imposed the middle term after stating that it had considered the

aggravating and mitigating factors. (Id. at pp. 904–905.) He argued the trial

court erred because it failed to specifically reference the section 1170(b)(6)

presumption or make express findings thereunder. (Ibid.) The appellate

court disagreed, concluding that “nothing in the record establishes that the

trial court was unaware of its obligations under . . . section [1170(b)(6)] or

that it failed to apply that provision. ‘In the absence of evidence to the

contrary, we presume that the court “knows and applies the correct statutory

and case law.” ’ [Citation.] Thus, although the trial court did not specifically

mention . . . section [1170(b)(6)], it is presumed to have known of the

provision. Moreover, because Caparrotta highlighted . . . section [1170(b)(6)]

in his sentencing memorandum, we presume that the trial court was aware

Caparrotta was seeking to benefit from that provision.” (Id. at p. 905.)

Caparrotta rejected the argument that a trial court must expressly state that,

weighing the applicable factors, the “ ‘imposition of the lower term would be

contrary to the interests of justice.’ ” (Id. at p. 906 & fn. 14.)

We acknowledge that, unlike in Caparrotta, defendant did not submit a

sentencing memorandum expressly arguing that section 1170(b)(6) applied.

Unlike the dissent (Dissent, pp. 4–5), however, we do not find this difference

dispositive. This is because defendant’s sentencing materials discussed his

childhood trauma and set forth how his childhood trauma led to his crimes

12

such that the trial court was “on notice” (Fredrickson, supra, 90 Cal.App.5th

at p. 994) that defendant’s childhood trauma may have been a contributing

factor to the crimes in this case. Faced with circumstances that were

sufficient to put the court on notice (as set forth in defendant’s submissions,

which the court stated it had considered), the record supports the inference

that the court recognized and treated defendant’s childhood trauma as a

mitigating factor, and nothing in the record suggests the court was unaware

of section 1170(b)(6). 6

Finally, relying on Fredrickson, defendant seems to suggest that we

should remand this case for a new sentencing hearing because the court did

not make express findings on the record under section 1170(b)(6). The

dissent seems to agree, critiquing the court’s failure to expressly state that

“childhood trauma was a contributing factor to the commission of the felony

offenses” and the aggravating circumstances outweigh the mitigating

circumstances so that imposition of the lower term would be contrary to the

interests of justice. Per Fredrickson, the record must “affirmatively show

compliance” with section 1170(b)(6) after a defendant makes an initial

6 The dissent concludes this record is akin to the record deemed

ambiguous in Panozo. There, sections 1170.9 and 1170.91 obligated the trial

court to consider qualifying service-related PTSD as a mitigating

circumstance in making discretionary sentencing choices. (Panozo, supra,

59 Cal.App.5th at pp. 834–836.) The defendant argued his crimes were the

byproduct of his service-related PTSD, but the sentencing briefs and

arguments did not reference sections 1170.9 or 1170.91 or suggest that the

court was obligated to consider service-related PTSD as a mitigating factor.

(Panozo, at pp. 837–838.) Importantly—and in stark contrast to this case —

the trial court in Panozo listed the mitigating and aggravating factors it

considered on the record, but the defendant’s service-related PTSD was not

among them. (Id. at pp. 838–839.) The record before us does not “strongly

suggest[] the trial court was unaware of its mandatory sentencing

obligations” (id. at p. 832) as did the record in Panozo.

13

showing triggering the statutory presumption (Fredrickson, supra,

90 Cal.App.5th at p. 992), and Fredrickson suggests that trial courts are

obligated to make express findings under section 1170(b)(6). (E.g.,

Fredrickson, at p. 993 [“Prior caselaw does not clarify what initial showing

would be sufficient to obligate a trial court to make an express finding

regarding the [s]ection 1170(b)(6)(B) lower term presumption”].) Fredrickson

held that a defendant must make an initial showing of section 1170(b)(6)’s

applicability to trigger the low term presumption and the requirement of an

affirmative showing of compliance with the statute, and concluded that

Fredrickson had failed to meet her initial burden. (Id. at pp. 992, 994.)

Fredrickson’s reference to a trial court making “express finding[s]” after a

defendant’s initial showing was therefore dictum, which the dissent does not

dispute.

We decline to hold that a trial court’s failure to make express findings

under section 1170(b)(6) requires remand regardless of whether the record

affirmatively demonstrates that the trial court misunderstood the scope of its

sentencing discretion, because defendant has not squarely asked us to do so.

The argument defendant pursues is that “the record is at least ambiguous

that the court understood section [1170(b)(6)]’s statutory obligation to

consider the presumptive low term where a super mitigant contributed to the

offense.” The answer to the question of whether a trial court must make

specific express findings under section 1170(b)(6) is not so obvious that we

deem it prudent to resolve the issue in the absence of reasoned briefing

squarely addressing the issue. Section 1170 requires a statement of “facts

and reasons” or “reasons” supporting a court’s sentencing choice (id. at

subds. (b)(5), (c)), and defendant does not maintain that the trial court

violated this provision. Where a statute requires a statement of reasons,

14

court rules require a judge to “state in simple language the primary factor or

factors that support the exercise of discretion,” and provide “[t]he statement

need not be in the language of the statute or these rules.” (Cal. Rules of

Court, rule 4.406.) Relevant factors enumerated in the California Rules of

Court will be deemed to have been considered by the court unless the record

affirmatively reflects otherwise (id. at rule 4.409), and Caparotta rejected the

argument that section 1170(b)(6) requires a court to make an express finding

that “ ‘imposition of the lower term would be contrary to the interests of

justice.’ ” (Caparotta, supra, 103 Cal.App.5th at p. 906 & fn. 14.) Defendant

acknowledges Caparotta’s rejection of an express finding requirement, and

discusses neither of the applicable Rules of Court. While Fredrickson can be

read to suggest that express findings tracking the statutory language are

required after the initial showing is made, the holding of Fredrickson did not

go so far because the court ultimately held that Fredrickson failed to make

the requisite initial showing. (Fredrickson, supra, 90 Cal.App.5th at p. 994.)

Formal incantation of the statutory language is unnecessary where the

record shows, in substance, that the court followed the dictates of the statute.

In sum, we do not agree with defendant’s claim that the record raises

serious doubts that the court understood the scope of its sentencing

discretion. “Absent evidence to the contrary, we presume that the trial court

knew the law and followed it.” (People v. Ramirez, supra, 10 Cal.5th at

p. 1042.)

II. Custody Credits

Defendant next contends that the court failed to state his actual and

conduct credits in case No. 23CR01950 when it terminated his probation and

ordered him to serve 60 days in county jail concurrent to “any other

sentence.” The People believe this issue is moot because the court terminated

15

defendant’s probation and this court cannot grant any effective relief.

Defendant responds that he was sentenced in multiple cases and he is still

serving time, so “it is possible” a correction of credits could affect his release

date, although he makes no effort to explain how this would occur. Because

the concurrent 60-day jail sentence at issue would have been completed by

the date of this appeal even without any custody credits, we agree with the

People that the issue of custody credits for case No. 23CR01950 is moot. 7

DISPOSITION

The judgment is affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.

People v. Nielsen (A170363)

7 Defendant made additional arguments regarding alleged deficiencies

in the court’s calculation of actual and conduct credits in case No. 24CR03321

and in case No. 23CR02511 in his opening brief. In his reply brief, defendant

conceded that the augmented record in this case shows a “partial correction”

of his credits, and he pursued only the argument that the court failed to state

his actual and conduct credits on the record in case No. 23CR01950.

Defendant also conceded arguments that challenged the validity of his plea

after the People pointed out that he had not obtained a certificate of probable

cause. We do not address the claims defendant has conceded.

16

GOLDMAN, J., Dissenting.

I disagree with the majority’s repudiation of the standard our

Division Five colleagues set forth in People v. Fredrickson (2023)

90 Cal.App.5th 984, 991 (Fredrickson); namely, that the record “must

‘affirmatively’ show compliance with [the] statutory sentencing mandate”

when it has been triggered “by an ‘initial showing’ of the applicability of the

statute.” On the record before us, I find the odds that the trial court silently

applied the lower term sentencing presumption under section 1170(b)(6)

before imposing the upper term sentence recommended by the probation

department vanishingly small. No one mentioned it. The probation report

did not identify childhood trauma as a mitigating circumstance, and defense

counsel did not object or argue that it was. On appeal, the Attorney General

maintains the trial court properly “made no finding” that childhood trauma

was a contributing factor to the offense because there was insufficient

evidence of a connection. While I agree with the majority that, contrary to

the Attorney General’s argument, there was enough evidence to trigger the

presumption, I cannot join its supposition that the trial court must have

reached the same conclusion when no one even raised the issue. I would

remand so the trial court can afford Nielsen the sentencing consideration

that the Legislature has prescribed in this circumstance.

I.

A.

In articulating the standard of review applicable to a claim that the

trial court failed to apply the lower term presumption under

section 1170(b)(6), Fredrickson followed two cases applying a like standard

under sections 1170.9 and (later also) 1170.91, which require a court to

consider a defendant’s service-related post-traumatic stress disorder (PTSD)

1

as a mitigating factor in evaluating whether to grant probation and in

selecting the appropriate determinate term. (See People v. Bruhn (1989)

210 Cal.App.3d 1195, 1199–1200 (Bruhn); People v. Panozo (2021)

59 Cal.App.5th 825, 836–837 (Panozo).) What those statutes have in common

with section 1170(b)(6) is that they are instances in which the Legislature

determined that courts must consider specific factors that may reduce a

defendant’s culpability or otherwise warrant a reduced sentence. (See Bruhn,

at p. 1199 [noting the Legislature’s “ ‘strong concern [that] emotionally

affected Vietnam veterans be afforded every opportunity to get meaningful

rehabilitative treatment in a facility specifically designed to deal with their

unique and complex disorder’ ”].) Under section 1170(b)(6)(A)–(C), the court

is required to apply a lower term presumption if “any of the following was a

contributing factor in the commission of the offense”: the defendant

experienced psychological, physical, or childhood trauma; the defendant was

a youth at the time the offense was committed; or the defendant is or was a

victim of intimate partner violence or human trafficking. The enactment of

this provision is a legislative declaration that the normal application of the

sentencing triad in those circumstances is inadequate to the Legislature’s

purposes and must be modified by special rules.

Bruhn explained that its requirement that the record affirmatively

show compliance with the statutory mandate respects the strong concern that

the Legislature has expressed for defendants in the specified circumstance.

(Bruhn, supra, 210 Cal.App.3d at pp. 1199–1200.) The record in Bruhn fell

short even though section 1170.9 was “obliquely mentioned” at the sentencing

hearing when the prosecutor referred to it and stated that in a previous case

there had been no program available to receive the defendant. (Bruhn,

supra, 210 Cal.App.3d at p. 1200 & fn. 3.) Noting that “[a]n intelligent

2

exercise of discretion cannot be inferred from a silent record,” it found this

lone reference by the prosecutor insufficient to indicate that the trial court

complied with the statute. (Id. at p. 1200.)

The Panozo court remarked that Bruhn “did not explain what it meant

by a ‘silent’ record,” but observed that the record in the case before it “lacks

even an oblique reference to the relevant statutes and provides no basis to

believe the sentencing court was aware of its mandatory obligations, strongly

suggesting the opposite conclusion.” (Panozo, supra, 59 Cal.App.5th at

p. 837, fn. 13.) The defendant’s sentencing memorandum did not mention

sections 1170.9 and 1170.91, although it did argue that the defendant’s

“PTSD from serving as a Marine in Iraq ‘partially led him to where he is

now,’ ” and asked the court to grant probation and permit him to enroll in

Veteran’s Court. (Panozo, at p. 829.) The probation report mentioned his

military service and PTSD diagnosis, but did not identify them as mitigating

factors. (Id. at p. 830.) The trial court quoted the aggravating and mitigating

circumstances listed in the probation report, found that the aggravating

circumstances outweighed the mitigating circumstances, denied probation

with a referral to Veteran’s Court, and concluded by thanking the defendant

for his service. (Id. at p. 831.) In the Panozo court’s view, the record was

“ambiguous” about whether the trial court was aware of its obligations. (Id.

at p. 840.) On the one hand, the court was “plainly aware that Panozo served

in Iraq, struggled with PTSD and alcohol use, and requested probation and

treatment through Veterans Court.” (Id. at p. 838.) On the other hand,

defense counsel neither cited the applicable statutes nor explained that the

court was required to consider the service-related issues as mitigating

circumstances, and neither the prosecution nor the probation department

acknowledged them as mitigating circumstances. (Id. at p. 839.)

3

B.

Panozo’s conclusion that the record was ambiguous similarly applies to

the record here. Nielsen’s trial counsel did not mention section 1170(b)(6), let

alone offer any argument based on it. The probation report did not include a

check in the box under mitigating circumstances to indicate that “[t]he

defendant experienced . . . childhood trauma . . . and it was a factor in the

commission of the crime.” The prosecutor argued that Nielsen’s substance

abuse, which the probation report identified as the sole mitigating factor, did

not reduce his culpability for vehicle theft, and that “even if the Court were to

find that mitigating circumstance, the—the aggravating circumstances

outweigh that both in numbers as well as significance.” Like Nielsen’s own

counsel, the prosecutor did not mention section 1170(b)(6).

The majority notes that the court referred to Nielsen’s “pretty

traumatic childhood” and expressed empathy for his situation. But as the

Attorney General argues, “this was not a finding that appellant’s childhood

trauma was a contributing factor to the commission of the felony offenses for

which he was convicted.” (See Fredrickson, supra, 90 Cal.App.5th at p. 992

[presumption is not triggered unless the court makes such a finding].) Even

if the court did consider it a mitigating factor, notwithstanding the probation

report’s failure to identify it and defense counsel’s failure to argue it,

weighing that factor without applying the lower term presumption is not

compliance with section 1170(b)(6). It is precisely what the Legislature did

not want trial courts to do when such a mitigating circumstance exists.

Context also matters. At the hearing, Nielsen’s trial counsel addressed

only the probation department’s conclusion that “a straight local prison

sentence seems more appropriate [than probation] given the defendant’s

history.” She argued that a residential rehabilitation program would better

4

serve Nielsen’s needs, and Nielsen himself then read a letter asking the court

to sentence him to an inpatient program. In response, the court explained its

decision to deny probation, referring to an unbroken pattern of “criminality

from the time you were a juvenile until today,” a history of “failure to report,

failure to follow through and getting sent to local prison commitments,” and

“[w]hat is really telling is if you are out of custody . . . and seeking that

treatment and you didn’t do that.” The court concluded: “Again, I am

empathetic to your situation. But based on your criminal history the Court

cannot extend a grant of probation again. There’s just no way. It’s just not

realistic. . . . Drug addiction is a terrible, terrible waste of life. So it brings

me no joy to do this, but I would not grant you probation. I would deny

probation.” At no point did the court explain its reasoning with respect to its

selection of the aggravated term. Without further discussion, it simply

imposed the four-year upper term recommended in the probation report.

That report likewise expressly discussed only why a “straight local prison

sentence” was more appropriate than probation, never purporting to explain

why the upper term was more suitable than the middle or lower term.

The only other thing the majority says about the record is that the trial

court likely “did not overlook section 1170(b)(6)” because the court complied

with subdivision (b)(2) of section 1170, which was added to the statute at the

same time and requires aggravating factors to be proved beyond a reasonable

doubt at trial unless admitted by the defendant. I do not think one can

logically infer from the fact that the trial court did not violate subdivision

(b)(2)—because it accepted Nielsen’s admission of the aggravating factors—

that it applied subdivision (b)(6)’s presumption in favor of the lower term

based on his childhood trauma. As discussed above, the record strongly

suggests otherwise.

5

In addition, Fredrickson observed that “[p]rior caselaw does not clarify

what initial showing would be sufficient” to trigger the presumption under

section 1170(b)(6), and held for the first time that “an initial showing has

been made when the record and/or arguments are sufficient to put a trial

court on notice that a defendant’s [qualifying condition] may have been a

contributing factor in commission of the underlying offense.” (Fredrickson,

supra, 90 Cal.App.5th 984, 993–994, italics added.) If we are to assume the

trial court was aware of and applied that standard in evaluating whether

there was sufficient evidence of a connection between Nielsen’s childhood

trauma and the auto theft for which it imposed the aggravated term, then we

ought also to assume it was aware of Fredrickson’s statement, in the same

paragraph, that the trial court should “make an express finding regarding

the Section 1170(b)(6)(B) lower term presumption.” (Frederickson, at p. 993.)

And yet it did not. While the majority may decide today to reject this aspect

of Fredrickson, in my view it makes little sense to presume the trial court

silently decided to do the same.

Finally, imagine the trial court’s inner monologue implied by the

majority’s reading of the record: “I have noticed an omission in the probation

report that the parties haven’t raised. It doesn’t identify Mr. Nielsen’s

childhood trauma as a mitigating circumstance, and under section 1170(b)(6),

which the parties also haven’t raised, I’m required to apply a presumption in

favor of the lower term if childhood trauma may have been a contributing

factor to the offense. Of course, the prosecutor would probably argue that,

even assuming there was sufficient evidence of childhood trauma, there isn’t

enough evidence that it was a contributing factor to the auto theft, because

that’s what he said about the substance abuse, and perhaps the connection is

even more attenuated with this factor. Defense counsel, who should know

6

the record and the law and has a duty to advocate for her client, hasn’t asked

me to find childhood trauma as a mitigating factor and hasn’t argued that I

need to apply any presumption based on it. But I don’t need to ask the

parties for their views, because it’s clear to me that under the Fredrickson

standard there’s enough evidence here to require the presumption in favor of

the lower term based on childhood trauma. So I’m applying it, and I’m

finding nonetheless that the aggravating circumstances outweigh the

mitigating circumstances such that imposition of the lower term would be

contrary to the interests of justice. And yes, Fredrickson said I should

indicate on the record that I’ve made this finding, but I’m not persuaded

that’s a correct statement of the law, so I won’t.”

I do not think that happened.

C.

The majority relies on People v. Caparrotta (2024) 103 Cal.App.5th 874,

but that case is not on point. There, the defendant’s sentencing

memorandum argued that the lower term presumption under

section 1170(b)(6) applied, and—so far as the opinion discloses—there was no

contention that the evidence was insufficient to trigger it. (Caparrotta, at

p. 905.) That the defendant raised the presumption was an express part of

the court’s holding: “[B]ecause Caparrotta highlighted Penal Code

section 1170, subdivision (b)(6) in his sentencing memorandum, we presume

that the trial court was aware Caparrotta was seeking to benefit from that

provision.” (Caparrotta, at p. 905.) Caparrotta, like Bruhn and Panozo, was

therefore sensitive to the record in a way the majority opinion is not.

Given the contextual reasons in the record to doubt the trial court did

what the majority supposes, I do not agree that the silent record presumption

applies here. It has a proper role to play, but if deployed as a legal fiction

7

that sweeps away relevant context, the only thing it accomplishes is the

evisceration of appellate review. The majority quotes the Supreme Court’s

statement that “[a]bsent evidence to the contrary, we presume that the trial

court knew the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th

983, 1042.) But in Ramirez, which concerned the trial court’s alleged failure

to consider the defendant’s ability to pay before imposing a fine above the

minimum amount, the court noted that the trial court had “considered and

referred to the probation report,” which “stated he had the ability to pay a

$250 probation investigation fee, and recommended that he pay a

$10,000 restitution fee, . . . at least implicitly convey[ing] that defendant’s

ability to pay was a relevant consideration,” and had also “heard the defense

argument, which was that defendant should not have to pay ‘any fine’ ‘in

view of [his] inability to work or have any money from this point onward.’ ”

(Ibid.) Here, unlike in Ramirez or Caparrotta, there was nothing in the

probation report or the defense argument to signal the applicability of the

court’s mandatory duty.

Moreover, it is important to recall that the record here suggests the

prosecutor would have contested the applicability of section 1170(b)(6) had it

been raised, just as the Attorney General does on appeal. Only after we have

adjudicated that disputed legal issue in Nielsen’s favor does it become

relevant for us to consider what, if anything, the record shows about the trial

court’s compliance with the lower term presumption. Even if we assume the

trial court considered section 1170(b)(6) notwithstanding the failure of any

party to call it to its attention, the difficulty for the purposes of our review is

that if the court, in a revised version of the inner monologue above, had

silently resolved the unraised issue of the statute’s applicability against

Nielsen, the record would look exactly the same.

8

The majority cites rule 4.409 of the California Rules of Court , which

provides that “[r]elevant factors enumerated in these rules must be

considered by the sentencing judge, and will be deemed to have been

considered unless the record affirmatively reflects otherwise.” That rule is a

poor fit for this kind of problem. In its paradigmatic application, it simply

means that a trial court’s failure to mention a specific mitigating or

aggravating factor does not establish that the court rejected or failed to

consider it. (See, e.g., People v. Pearson (2019) 38 Cal.App.5th 112, 117;

People v. Nevill (1985) 167 Cal.App.3d 198, 202.) The Advisory Committee

Comment to rule 4.409 states that the rule “applies the presumption of

Evidence Code section 664 that [an] official duty has been regularly

performed.” As applied to judicial officers, Evidence Code section 664

operates as a presumption about what the court did, not how it adjudicated a

non-obvious legal question before it. (See, e.g., People v. Visciotti (1992)

2 Cal.4th 1, 49 [because a defendant’s written waiver of the right to be

present must be obtained in open court, court would presume the trial court

did so]; People v. Sullivan (2007) 151 Cal.App.4th 524, 550 [court presumes

that the trial court “regularly performed the lawful duty of informing

defendant of the dangers and disadvantages of self-representation, and the

consequences of his decision, before accepting his express waiver of his right

to counsel”]; cf. People v. Jeffers (1987) 43 Cal.3d 984, 1000 [presumption does

not apply to uncertain questions of law]; In re Marriage of Jovel (1996)

49 Cal.App.4th 575, 590 [same].) Thus, I do not think rule 4.409 converts

this court’s resolution of the question of the statute’s applicability into a

presumption that the trial court decided the question the same way and then

determined that the upper term should be imposed regardless. That is a

9

reason why the standard of review the court adopted in Fredrickson is better

than the one the majority advances here.

In any event, given the ambiguous record before us, at a minimum I

would find that any presumption under rule 4.409 that Nielsen’s sentence

reflects the trial court’s application of the statute has been overcome, as

Panozo found in the case before it. (Panozo, supra, 59 Cal.App.5th at p. 839.)

II.

To be entitled to relief based on the foregoing discussion, Nielsen would

have to prevail either on his argument that his claim was not forfeited by his

counsel’s failure to raise section 1170(b)(6) in the trial court, or on his

alternative argument that the failure to raise it constituted ineffective

assistance of counsel. Because the majority does not reach these arguments,

I will touch on them only briefly.

A.

In Panozo, the court concluded that the defendant did not forfeit his

claim by failing to object when the court did not list his PTSD as a mitigating

factor. It reasoned that the defendant was not challenging “the manner in

which the trial court exercised its sentencing discretion but rather its

apparent misapprehension of statutory sentencing obligations,” noting that a

court’s failure to comply with mandatory obligations—in that case, the

obligation to consider the defendant’s service-related PTSD—is not subject to

forfeiture. (Panozo, supra, 59 Cal.App.5th at p. 840.) Fredrickson followed

Panozo on this point, concluding that a claim that the trial court failed to

apply the lower term presumption under section 1170(b)(6) is not subject to

forfeiture because the trial court has a mandatory duty to apply the

presumption once it has been triggered by evidence in the record.

(Fredrickson, supra, 90 Cal.App.5th at p. 994, fn. 8.)

10

Without mentioning Fredrickson, the court in People v. Tilley (2023)

92 Cal.App.5th 772, 778 held that the defendant forfeited his claim by failing

to seek the lower term based on section 1170(b)(6), characterizing it as a

claim that the trial court “failed to properly make or articulate its

discretionary sentencing choices.” While forfeiture may well apply to a claim

that the trial court abused its discretion by finding under section 1170(b)(6)

that imposition of the lower term was not in the interests of justice, that was

not the claim the defendant made in Fredrickson, and it is not the claim that

Nielsen makes here. Rather, he claims the trial court failed to comply with a

mandatory duty by neglecting to apply the presumption at all.

Also without mentioning Fredrickson, in People v. Achane (2023)

92 Cal.App.5th 1037, 1044, the court held that the unauthorized sentence

exception to the forfeiture doctrine does not apply to a claim that the trial

court failed to apply the presumption under section 1170(b)(6). Fredrickson,

however, did not rely on the unauthorized sentence exception to conclude that

the claim was not forfeited, and neither does Nielsen here.

Because the contrary authorities are not on point, I would follow

Fredrickson and find that Nielsen’s claim is not forfeited.

B.

Even if the claim were forfeited, I would find it cognizable on appeal

because Nielsen received ineffective assistance of counsel. Because the

evidence warranted the application of section 1170(b)(6), no reasonable

tactical purpose appears for failing to raise the statute, especially given the

recommendation in the probation report that the court impose the upper

term. And there is at least a reasonable probability that the outcome would

have been more favorable to Nielsen had his counsel done so. (People v.

Hardy (2021) 65 Cal.App.5th 312, 329–330 [“A ‘reasonable probability’ ‘does

11

not mean more likely than not, but merely a reasonable chance, more than an

abstract possibility’ ”].) As noted above, the trial court discussed at length its

decision not to extend a grant of probation, but did not explain its reasoning

with respect to the length of the custodial sentence. It imposed the four-year

upper term recommended in the probation report, which had failed even to

identify childhood trauma as a mitigating factor, let alone refer to the lower

term presumption required by section 1170(b)(6). And while the court

mentioned Nielsen’s childhood trauma, consistently with the probation report

it did not connect that trauma to his commission of the offense. Had the

court done so and added the statutory presumption to the balance, there is a

reasonable chance that it would have imposed a different sentence.

For these reasons, I respectfully dissent insofar as the majority denies

Nielsen relief on his claim that the trial court erred by failing to apply the

lower term presumption under section 1170(b)(6).

12

Trial Court: Mendocino County Superior Court

Trial Judge: Hon. Victoria Shanahan

Counsel: Heather L. Monasky, under appointment by the Court of

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance Winters and Jeffrey

M. Laurence, Assistant Attorneys General, Eric D. Share

and Stephanie F. Richardson, Deputy Attorneys General

for Plaintiff and Respondent.